The Supreme Court ruled that the government's airports policy is legal. Photograph: Andrew Holt/Getty Images The Supreme Court ruled that the government's airports policy is legal. Photograph: Andrew Holt/Getty Images

Has the Supreme Court hobbled the UK’s climate efforts?

At the end of March, ENDS reported claims by 140 legal experts and campaigners that the Supreme Court had dealt a blow to efforts to tackle climate change by ruling that the Airports National Policy Statement (ANPS), regarded as a crucial first stage in Heathrow’s drive to get approval to build a third runway, was legal.

It overturned a decision by the Court of Appeal that the policy was no longer valid and needed to be reviewed. 

But has the Supreme Court really caused “profound harm” and “undermined the UK’s effort to tackle climate change ahead of COP26”, as the campaigners claim. ENDS spoke to a lawyer specialising in energy and infrastructure projects and a climate change consultant and found this may be exaggerating the impact of the decision.

Robert Garden, a senior associate at law firm CMS, said the Supreme Court had made quite a narrow legal ruling. “The ANPS doesn’t grant any formal consent for the third runway,” he said. “It sets the framework and tests that any developer would have to comply with when they submit their application.”

In any case, it was always a mistake to conclude that the Court of Appeal’s decision, with which the Supreme Court disagreed, was a great victory for the climate, Garden said. “The Supreme Court decision clearly isn’t either, but it’s a very focused legal issue, specific to one matter of policy. But it has raised the profile of environmental matters in planning.”

In fact, a new campaign is already addressing the holes left by the court’s ruling. In mid-April, the Good Law Project, along with Ecotricity founder Dale Vince and environmental journalist George Monbiot, wrote to transport secretary Grant Shapps, calling on him to review the ANPS in the light of the government’s net zero commitment, which was made in 2019 – a year after the current policy was adopted. 

The government recently performed a u-turn over the Cumbrian coal mine, Garden pointed out, by ordering a public inquiry. “Maybe that is where [the challenge to] Heathrow has had some success, in making the government realise how important this is and that they will be held to account, whether it’s by charities, local authorities or local groups,” he added.

Edward Hanrahan, chairman of ClimateCare, told ENDS that the Supreme Court decision was just one part of the puzzle. “It doesn’t have any bearing on policy,” he pointed out. “What it was saying is that it’s not illegal to expand Heathrow because of culpability around climate change.”

But now that the government has committed itself to deeper carbon emission cuts – 78% by 2035 – and included aviation in the calculations for the first time, Hanrahan said this was telling companies they should start thinking about whether their business strategy would be sustainable in 15 years time. The Good Law Project suggested this new commitment “makes the case for reviewing and suspending the ANPS irresistible”. 

Hanrahan believes carbon-pricing could render infrastructure projects such as the third runway uneconomic. “It might be perfectly possible to build the runway, but it might not be possible to make a return on that investment [should carbon pricing come in],” he said.

Hanrahan conceded that this will not happen overnight because of the economic pain it would cause, but in 2023, there will be a stock-take of the Nationally Determined Contributions under the Paris Agreement. This will make it apparent – if we didn’t already know it – that few nations are hitting their carbon reduction targets and that new measures will be needed to accelerate decarbonisation. 

But he said it wasn’t just about what the government does or doesn’t do. In the case of the Cumbrian coal mine, for example, there is an argument for saying both the authority itself and investors should have been more alert to the climate implications of the scheme.

“Not only from an ethical point of view, but from a risk management one, too,” Hanrahan said. “If the person running my pension scheme is still investing in that sort of thing, I question how much they are looking out of the window every day. Every single asset manager should be applying a carbon price [anywhere between 60-100 a tonne] and asking, if I do this, what does this business look like in 2030. And if it doesn’t look good, they should be questioning whether they should be in it.”

The aviation industry is facing unprecedented change, not just because of climate change but also because of the ongoing impacts of the year-long covid pandemic. “Even though the ANPS has been reinstated, the question remains as to whether expansion of Heathrow Airport is still a desirable result, and whether it might nonetheless be advisable to revisit the ANPS,” CMS said in an article posted after the Supreme Court announced its decision at the end of last year. 

In the long run, in other words, government policy, the view of climate experts and even public opinion will all have a greater bearing on whether Heathrow ultimately gets its third runway than any ruling from the Supreme Court.

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